American K-9 Detection Services, LLC and Hill Country Dog Center, Llc v. Latasha Freeman

556 S.W.3d 246

Opinion

I

In 2011, respondent LaTasha Freeman, a civilian employed as an administrative clerk by a private military contractor, was stationed at Camp Mike Spann, a U.S. Army base near Mazar-i-Sharif in northern Afghanistan. The base was a secured military position supporting tactical combat operations in the heart of the war zone. Named for the first American combat casualty in Afghanistan after the fall of the Taliban in 2001, the base opened in 2006 and once held some 2,000 coalition troops. The United States turned it over to the Afghans in April 2014.

Stationed among the troops at Camp Mike Spann were explosive-detection dogs provided to the Army to sniff for IEDs. IEDs have been called "the No. 1 killer of civilians and troops in Afghanistan." 4 The Pentagon has reportedly concluded that "the best weapon against IEDs [is] still a handler and his dog." 5 Another report states that "[o]n average, these four-footed soldiers are 98 percent accurate in their detection abilities ... and depending on the task and climate, can work up to 12 hours a day." 6

One such dog, Kallie, was owned by petitioner American K-9 Detection Services, LLC ("AMK9"), a Florida company, which contracts with the Department of Defense to provide teams of "contract working dog[s]" and handlers to the Armed Services. The dog-handler teams are trained in the United States, then deployed to Afghanistan. As Freeman concedes, "AMK9 provides these services which protect our national security.... The job that they do as far as training and having their dogs go out and sniff for bombs to protect our soldiers out in the field is absolutely critical to protecting our soldiers, protecting our civilians". Kallie was trained by AMK9 and a Texas company, petitioner Hill Country Dog Center, LLC.

One morning, Freeman had walked with a coworker to a security checkpoint to escort arriving vehicles to their parking places. She was standing a few yards from the animal shelter in which Kallie was housed. The AMK9 incident report states that Kallie's handler was nearby, as well as another dog handler who was searching a vehicle, but Freeman says she did not see them. According to Freeman, Kallie ran through the shelter's open door towards her and jumped at the back of her left shoulder. Kallie bit Freeman's shoulder and "shook [Freeman's] left arm violently back and forth." Kallie then bit Freeman's right buttock and pulled down on her pants pocket. The incident report states that Kallie's handler quickly regained control of her. Freeman says a bystander pulled Kallie off her. Kallie's bites did not break Freeman's skin. The incident report states: "Injured Person(s) ... NONE", "Nature of injury ... NONE", "Details of First Aid/Medical Attention/Hospitalization/Evacuation/Leave ... NONE", and "Nature of Damage/Loss ... Small puncture mark on left sleeve of jacket."

Kallie's kennel in the shelter had 2 adjacent holding pens separated by a vertical divider and open at the top. The door to Kallie's side of the kennel was shut, but the door to the adjoining pen was not. According to the incident report, Kallie managed to jump over the divider between the 2 pens and escape out that pen's and the shelter's open doors. She was running over to her handler when she saw Freeman. "In her playful yet rough manner", the report continues, Kallie "jumped up against" Freeman "to play and seek attention, but in doing so snapped her jaw and punctured the left front sleeve of [Freeman's] jacket."

A week later, AMK9's project manager emailed Freeman to apologize for the incident. "The Army guys", he said, "had built new kennels" without tops on them, and Kallie had jumped over a divider between pens in the kennel and run out the open door of the other pen. Following the incident, the manager said, "[t]ops [were] put on the kennels and the handler was reprimanded." He explained that Kallie was "a very playful dog", that "the soldiers play tug a war and the dogs will mouth them as well as jump[ ] around," and that Kallie "was just trying to play with" Freeman. Freeman had not been "attacked", he said; "when these dogs are given the command attack, there are serious injuries to follow". "These Dogs are here to help keep you, me, soldiers and everyone else at these [forward operating bases] as safe as possible," he said. "[T]he last thing we want is one of our own being injured by the dogs[;] we are all on the same team over here." The manager offered to replace Freeman's jacket.

In 2013, Freeman filed a claim against her employer and its carrier under the Defense Base Act, 7 an extension of the Longshore and Harbor Workers' Compensation Act, 8 which she later settled for $250,000. She also sued AMK9 and Hill Country, alleging that they were negligent in training Kallie and her handler and in failing to restrain her. She now claims to suffer from complex regional pain syndrome and to be completely disabled. She seeks $1 million in damages.

According to AMK9, the Army designed and built Kallie's kennel with no top and required AMK9 to use it. Because the kennel design allowed Kallie to escape, AMK9 asserts that Freeman's injuries were caused by the Army. AMK9 filed a plea to the jurisdiction asserting that Freeman's claims are nonjusticiable under the political question doctrine because they require an assessment of the Army's involvement in causing her alleged injuries. 9 AMK9 also moved to have the Army and the Department of Defense named responsible third parties under Chapter 33 of the Texas Practice and Remedies Code. 10 The trial court granted that motion, granted AMK9's plea, and dismissed the case.

The court of appeals reversed and remanded the case for further proceedings. 11 The court acknowledged AMK9's assertion that the Army's actions were the proximate cause of the incident but rejected the application of the political question doctrine, concluding that AMK9 had "produced [no] evidence that the Army, in failing to design and build the kennel such that the pen dividers extended to the ceiling, could have reasonably foreseen that such failure would result in injuries to a person outside the kennel." 12 The court also faulted AMK9 for not having "presented any evidence establishing that the Army was actually negligent in designing the kennel." 13

We granted AMK9's and Hill Country's petitions for review. 14

II

A

In Marbury v. Madison , Chief Justice Marshall declared that "[i]t is emphatically the province and duty of the judicial department to say what the law is." 15 To the courts alone belongs the power to authoritatively interpret the constitution. 16 But the limits on judicial power are as important as its reach. "The province of the court", Chief Justice Marshall wrote,

is, solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have a discretion. Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court. 17

The Supreme Court expanded on this political question doctrine in Baker v. Carr , setting out 6 tests for identifying issues beyond the courts' power to decide. 18 Important here are the first 2: "a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it". 19 The 2 tests, the Supreme Court has explained, are related: "the lack of judicially manageable standards may strengthen the conclusion that there is a textually demonstrable commitment to a coordinate branch." 20

Baker was careful to note that the doctrine "is one of 'political questions,' not one of 'political cases.' The courts cannot reject as 'no law suit' a bona fide controversy as to whether some action denominated 'political' exceeds constitutional authority." 21 The issue in Baker was deeply political: whether states could apportion legislative districts with unequal numbers of voters. 22 Indeed, as the Supreme Court has observed, Marbury itself "was also a 'political' case, involving as it did claims under a judicial commission alleged to have been duly signed by the President but not delivered." 23 The application of the doctrine depends not at all on whether an issue is political-few statutory and constitutional issues are not at least in some sense political-but rather on whether an issue is committed to another branch of government and therefore outside the judiciary's authority to address.

"The nonjusticiability of a political question", as Baker states, "is primarily a function of the separation of powers." 24 In the federal courts, "[t]he political question doctrine excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch." 25 The separation of the powers of government, implicit in the United States Constitution, is explicit in the Texas Constitution, which states:

The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted. 26

We have assumed that the Baker factors that "define nonjusticiable political questions for purposes of demarcating the separation of powers in the federal government under the United States Constitution ... serve equally well in defining the separation of powers in the state government under the Texas Constitution". 27 But in this case, we must consider the separation of powers among the Texas judiciary and the federal Executive and Legislative Branches. We think that separation is implicitly required by our state constitutional provision, as well as by principles of federalism, and mirrors the same separation of powers among the branches of government in Texas. So while we are guided in our view of the political question doctrine by Marbury and Baker as well as by other federal-court decisions, we apply the doctrine here as required for the separation of powers mandated by the Texas Constitution.

"The [United States] Constitution emphatically confers authority over the military upon the executive and legislative branches of [the federal] government." 28 Article I gives Congress the power to declare war and to raise, organize, support, arm, and discipline the military. 29 And Article II makes the President Commander-in-Chief of the Armed Forces. 30 As the Supreme Court has observed, "[t]he complex[,] subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments, subject always to civilian control of the Legislative and Executive Branches." 31 Moreover, "the Government's interests in military matters reasonably include limiting its own expenditure of scarce resources on the unmilitary task of participating in lawsuits as well as reducing contractors' liability exposure for the sake of future procurement efforts." 32 Just as the federal political question doctrine limits federal-court review of military decisions, Texas' political question doctrine limits state-court review of those decisions. 33

Not all cases involving the military are foreclosed by the political question doctrine. 34 Ordinary tort suits, for example, may be within the competence of a court to decide, even when touching on military matters, 35 but not when "[t]he interjection of tort law into the realms of ... military affairs would effectively permit judicial reappraisal of judgments the Constitution has committed to the other branches." 36 Each case requires "a discriminating analysis of the particular question posed, in terms of the history of its management by the political branches, of its susceptibility to judicial handling in light of its nature and posture in the specific case, and of the possible consequences of judicial action." 37 The political question must be "inextricable from the case". 38 Importantly, the court "must analyze [the case] as it would be tried, to determine whether a political question will emerge." 39 And "[i]f we must examine the Army's contribution to causation, 'political question' will loom large." 40

B

In determining how to apply the political question doctrine to a claim against a private military contractor like the claim in this case, an initial consideration is whether adjudicating the claim will require reexamination of a military decision. 41 When a contractor operates under the military's plenary control, the contractor's decisions may be considered de facto military decisions. 42 In one case, for example, the wife of an Army sergeant who was injured while escorting a large military convoy sued the contractor that operated the tanks. 43 She asserted that the contractor-employed driver of the tank on which her husband was injured had negligently driven too fast under the circumstances, failed to keep a proper lookout, and failed to inspect the tank before operating it. 44 She sued the contractor for the driver's negligence and for negligent hiring and entrustment. 45 The court concluded that the case would require reexamination of military decisions, "includ[ing] the military's decision to utilize civilian contractors in conducting the war in Iraq" and to utilize them in the mission in which the sergeant was injured. 46 The military had plenary control over the convoy, including deciding the date and time for departure, the route, the size, the speed, and the security measures. 47 Even if the driver bore some blame for the accident, the court reasoned, the contractor would surely argue that the military commander was negligent in his decisions about the convoy.

48 And while the driver was physically in control of the tank and could have ignored his orders, the contractor's defense would necessarily involve military orders. 49 Thus, the case would require evaluating decisions over which the military retained plenary control, and the court upheld the district court's dismissal. 50

Even when the contractor retains discretion over its actions, unreviewable military decisions may still be implicated by either the plaintiff's claims or the defendant's defenses. 51 "We must look beyond the complaint, considering how the Plaintiff[ ] might prove [her] claims and how [the defendant] would defend." 52 Causation defenses, in particular, often pose political questions when the court must disentangle the military's and contractor's respective causal roles.

A proportionate-liability defense may inject a nonjusticiable political question into a case. 53 For example, the family of a soldier electrocuted while showering in military barracks sued a contractor for failing to properly ground the water pump. 54 The contractor argued in defense that the military's actions were the sole proximate cause of the death because it had chosen unsafe barracks with significant electrical problems. 55 The court reasoned that a sole-cause defense would not raise nonjusticiable issues because, while it would require determination of facts related to strategic military decisions, it would not require the fact-finder "to reexamine their wisdom." 56 On the other hand, the court explained, determining whether the military was a proximate cause for apportioning responsibility would create nonjusticiable issues because "there is simply no way to determine damages without evaluating military decisions. The fact-finder cannot decide the respective degrees of fault as between a military contractor ... and the military without evaluating the decisions made by each". 57 In the latter situation, the court concluded that "[e]liminating the plaintiff['s] claims for [those] damages [was] the appropriate solution". 58

Footnotes

1

See Baker v. Carr , 369 U.S. 186 , 210-211, 82 S.Ct. 691 , 7 L.Ed.2d 663 (1962) ; Neeley v. W. Orange-Cove Consol. Indep. Sch. Dist. , 176 S.W.3d 746 , 777-778 (Tex. 2005).

2

Gilligan v. Morgan , 413 U.S. 1 , 10, 93 S.Ct. 2440 , 37 L.Ed.2d 407 (1973).

3

494 S.W.3d 393 (Tex. App.-Corpus Christi 2015).

4

Sean Carberry, Sniffing Out Bombs in Afghanistan: A Job That's Gone to the Dogs , NPR (March 8, 2013), http://www.npr.org/2013/03/10/173815691/sniffing-out-bombs-in-afghanistan-a-job-thats-gone-to-the-dogs.

5

Rebecca Frankel, Essay, Military Dogs Sniff Out IEDs, Save Lives , Wall Street J. (Oct. 31, 2014), http://www.wsj.com/articles/military-dogs-sniff-out-ieds-save-lives-1414772453.

6

Maryann Mott, Dogs of War: Inside the U.S. Military's Canine Corps , Nat'l Geographic (Apr. 9, 2003), http://news.nationalgeographic.com/news/2003/04/0409_030409_militarydogs.html.

7

42 U.S.C. §§ 1651 -1654.

8

33 U.S.C. §§ 901 -950.

9

AMK9's plea also asserted that it is entitled to derivative sovereign immunity and that Freeman's claims are preempted under the Federal Tort Claims Act's combatant-activities exception, 28 U.S.C. § 2680 (j), and under the Defense Production Act of 1950, 50 U.S.C. §§ 4501 -4568.

10

Tex. Civ. Prac. & Rem. Code §§ 33.001 -.017.

11

494 S.W.3d 393 , 411 (Tex. App.-Corpus Christi 2015).

12

Id. at 403 .

13

Id.

14

60 Tex. Sup. Ct. J. 1606 (Sept. 1, 2017).

15

5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803).

16

See W. Orange-Cove Consol. Indep. Sch. Dist. v. Alanis , 107 S.W.3d 558 , 563 (Tex. 2003) ("The final authority to determine adherence to the Constitution resides with the Judiciary.").

17

Marbury , 5 U.S. (1 Cranch) at 170.

18

It is apparent that several formulations which vary slightly according to the settings in which the questions arise may describe a political question, although each has one or more elements which identify it as essentially a function of the separation of powers. Prominent on the surface of any case held to involve a political question is found [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

369 U.S. 186 , 217, 82 S.Ct. 691 , 7 L.Ed.2d 663 (1962).

Baker distinguished between nonjusticiable issues, like political questions, and jurisdictional issues. Unlike cases over which the court lacks jurisdiction, "[i]n the instance of nonjusticiability, consideration of the cause is not wholly and immediately foreclosed; rather, the Court's inquiry necessarily proceeds to the point of deciding whether the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially molded." Id. at 198 , 82 S.Ct. 691 . In Texas, "[s]ubject matter jurisdiction requires ... that the case be justiciable." State Bar of Tex. v. Gomez , 891 S.W.2d 243 , 245 (Tex. 1994). Some cases "lack[ ] justiciability from the moment of pleading," while in others, "the court must retain certain limited authority" to develop the issue and dispose of the case. Travelers Ins. Co. v. Joachim , 315 S.W.3d 860 , 865 (Tex. 2010).

19

Baker , 369 U.S. at 217 , 82 S.Ct. 691 .

20

Nixon v. United States , 506 U.S. 224 , 228-229, 113 S.Ct. 732 , 122 L.Ed.2d 1 (1993).

21

Baker , 369 U.S. at 217 , 82 S.Ct. 691 .

22

See id. at 192-195 , 82 S.Ct. 691 .

23

INS v. Chadha , 462 U.S. 919 , 943, 103 S.Ct. 2764 , 77 L.Ed.2d 317 (1983).

24

369 U.S. at 210 , 82 S.Ct. 691 .

25

Japan Whaling Ass'n v. Am. Cetacean Soc'y , 478 U.S. 221 , 230, 106 S.Ct. 2860 , 92 L.Ed.2d 166 (1986).

26

Tex. Const. art. II, § 1.

27

Neeley v. W. Orange-Cove Consol. Ind. Sch. Dist. , 176 S.W.3d 746 , 778 (Tex. 2005).

28

Aktepe v. United States , 105 F.3d 1400 , 1403 (11th Cir. 1997).

29

U.S. Const. art. I, § 8, cl. 11 -16.

30

Id. art. II, § 2.

31

Gilligan v. Morgan , 413 U.S. 1 , 10, 93 S.Ct. 2440 , 37 L.Ed.2d 407 (1973).

32

McManaway v. KBR, Inc. , 554 Fed.Appx. 347 , 350 (5th Cir. 2014) (Jones, J., dissenting from the denial of rehearing en banc).

33

Cf. Ghane v. Mid-S. Inst. of Self Defense Shooting, Inc. , 137 So.3d 212 , 217-218 (Miss. 2014). The Mississippi Supreme Court has followed a similar trajectory in adopting a political question doctrine gleaned from the federal doctrine. In In re Hooker , 87 So.3d 401 , 404 (Miss. 2012), the court borrowed from federal jurisprudence to analyze a case implicating the separation of powers within the Mississippi government, that is, between the Mississippi governor and judiciary, because its "state government was modeled after the federal system." In Ghane , the court applied the doctrine to a tort claim involving military decisions and a private military contractor, noting that it had "adopted the political question doctrine in [ Hooker ]." 137 So.3d at 217 .

34

See Baker v. Carr , 369 U.S. 186 , 211, 82 S.Ct. 691 , 7 L.Ed.2d 663 (1962) ("[I]t is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance."); Gilligan , 413 U.S. at 11-12 , 93 S.Ct. 2440 ("[W]e neither hold nor imply that the conduct of the National Guard is always beyond judicial review or that there may not be accountability in a judicial forum for violations of law or for specific unlawful conduct by military personnel".).

35

See McMahon v. Presidential Airways, Inc. , 502 F.3d 1331 , 1364 (11th Cir. 2007) (in a suit against a civilian company that contracted with the military to provide air travel to service members, explaining that the second Baker v. Carr factor did not apply because "[i]t is well within the competence of a federal court to apply negligence standards to a plane crash").

36

Aktepe v. United States , 105 F.3d 1400 , 1404 (11th Cir. 1997).

37

Baker , 369 U.S. at 211-212 , 82 S.Ct. 691 .

38

Id. at 217 , 82 S.Ct. 691 .

39

Occidental of Umm al Qaywayn, Inc. v. A Certain Cargo of Petroleum Laden Aboard Tanker Dauntless Colocotronis , 577 F.2d 1196 , 1202 (5th Cir. 1978).

40

Lane v. Halliburton , 529 F.3d 548 , 561 (5th Cir. 2008).

41

See Harris v. Kellogg Brown & Root Servs., Inc. , 724 F.3d 458 , 466 (3d Cir. 2013) ("Because defense contractors are not coordinate branches of government, a determination must first be made whether the case actually requires evaluation of military decisions."); Lane , 529 F.3d at 560 (explaining that the first, "textual commitment" Baker v. Carr factor requires the defendant to "demonstrate that the claims against it will require reexamination of a decision by the military " (quoting McMahon v. Presidential Airways, Inc. , 502 F.3d 1331 , 1359 (11th Cir. 2007) ) ).

42

Carmichael v. Kellogg, Brown & Root Servs., Inc. , 572 F.3d 1271 , 1276-1277 (11th Cir. 2009).

43

Id. at 1275-1276 .

44

Id. at 1279 .

45

Id.

46

Id. at 1281 .

47

Id. at 1281-1282 .

48

Id. at 1286 .

49

See id. at 1284 .

50

Id. at 1296 .

51

Harris v. Kellogg Brown & Root Servs., Inc. , 724 F.3d 458 , 467 (3d Cir. 2013).

52

Lane v. Halliburton , 529 F.3d 548 , 565 (5th Cir. 2008).

53

Harris , 724 F.3d at 474 ; cf. Fisher v. Halliburton , 667 F.3d 602 , 621 (5th Cir. 2012) ("Whether this case presents a nonjusticiable political question is a significant issue, particularly since [the contractor] sought to have the role of the United States considered under section 33.004(I) of [the] Texas Civil Practice and Remedies Code not as a party to the litigation, but as a responsible third party.").

54

Harris , 724 F.3d at 463 .

55

See id. at 470-472 .

56

Id. at 473 .

57

Id. at 474 .

58

Id. at 475 . Harris held that the political question doctrine would apply only if a proportionate-liability system applied. Id. The district court had not yet ruled which state's law applied, so the circuit court remanded the case with instructions to dismiss if the district court found that the law of a state with a proportionate-liability scheme (including Texas) applied. Id. at 482 .

Similarly, a contributory-negligence defense may require reexamination of military decisions if it requires considering the fault of a military decision-maker. 59 After a power outage, a Marine was electrocuted while trying to install a backup generator. 60 Despite being told not to turn on the main generator because a group of Marines was working on it, the contractor turned it on, resulting in the Marine's injuries. 61 The contractor asserted a contributory-negligence defense, which would have required the court to decide whether the Marines were reasonable in trying to install the additional generator and whether backup power should have been supplied to that area. 62 The defense made the claim nonjusticiable. 63

C

Even if a claim requires reexamination of a military decision, that decision must be one that is "insulated from judicial review." 64 "[D]ecisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments" beyond judicial review. 65 Some decisions, such as whether to employ military force or the proper tactics to use during combat, are clearly professional military judgments that are beyond the judiciary's competence. 66 But other decisions, at first glance appearing to be decisions similar to those civilians make and subject to judicial review, are still yet "complex[,] subtle, and professional decisions" 67 that bear on military strategy.

As one circuit court has observed, "[h]ousing and maintenance decisions on a battlefield are exactly this type of decision". 68 In the case of the soldier electrocuted while showering, the contractor's proportionate-liability defense injected a political question into the case. 69 The fact-finder would be required to review "the military's decisions to house troops in unsafe barracks that would not be repaired." 70 To choose which barracks in which to house troops and whether to repair them, the military must consider issues unique to the battlefield such as the danger relative to other options and the cost of repair relative to other uses of its scarce resources. Judges lack not only the constitutional authority but also the expertise to evaluate these decisions.

III

We turn now to the "discriminating analysis" 71 required to apply these considerations in the political question doctrine to this case.

AMK9 contends that the Department of Defense (with which it contracted to provide Kallie) and the Army (in which Kallie served) caused Freeman's injuries, in part because the Army built (and rebuilt) Kallie's kennel to comply with its regulations and required AMK9 to use it. The trial court granted AMK9's motion to designate the Department and the Army as responsible third parties, thereby requiring "[t]he trier of fact ... [to] determine [their] percentage of responsibility ... for ... causing or contributing to cause" Freeman's injury. 72 Thus, as one court has observed, the political question doctrine "loom[s] large." 73

Freeman argues that the Department and the Army cannot be joined as responsible third parties because, as alleged by AMK9, their only duty to construct dog kennels was contractual and does not supply a sufficient legal standard for determining an allocation of responsibility to them. We think the contractual duty is sufficient, but in any event, the Army undertook to build Kallie's kennel and remediate it and required Kallie to use it. Had the actor been a private entity rather than the Army, these facts alone would support a negligent-undertaking claim. 74 Therefore, we must decide whether litigating this case, including AMK9's proportionate-responsibility defense, will necessarily require reexamination of sensitive military decisions.

The military had plenary control over at least some of the decisions implicated by Freeman's claim. AMK9's contention that Freeman's alleged injury occurred when Kallie jumped over an internal partition between pens and escaped through an adjacent pen's open door calls into question the Army's design decisions not to extend the internal partition to the ceiling and not to cover the kennel. The Army designed and constructed the kennel and required AMK9 to use it. While Freeman argues that only AMK9's negligent failure to train and control Kallie caused her injury, AMK9 argues, and will argue at trial, that the Army's design was to blame. AMK9's proportionate-liability defense requires the fact-finder to evaluate these decisions. The Army's design decisions would be front and center at trial. On that point, this case is virtually indistinguishable from Harris , in which the United States Court of Appeals for the Third Circuit held that a private contractor's proportionate-liability defense would render the case nonjusticiable. 75 If this case were to proceed, the fact-finder would be required to determine the degree to which the Army was responsible for Freeman's injury. This inquiry would require a reexamination of Army decisions, contrary to Baker 's first factor.

The Army's decisions about designing and constructing the kennels are unreviewable military decisions because they go to the equipping of the military, constitutionally committed to the federal political branches. This includes decisions about base configuration, including the design for kennels that house trained explosive-detection dogs like Kallie. Such decisions are similar to decisions about the quartering of soldiers and require similar risk-weighing judgments and allocation of scarce resources. Here, it is undisputed that the Army did not comply with its internal requirement to construct the kennel in a certain way, and a court should not insert itself into determining whether the Army should or should not have followed its guidelines. Were the roofs left off in order to allow the dogs to escape in the event of an attack? Or for ventilation in the desert heat? Or because those responsible for construction were summoned to other tasks? Or to conserve budgetary or material resources for additional structures? Only the Army can answer these questions in accounting for the construction of Kallie's kennel.

JUSTICE DEVINE argues that whether the Army actually caused Freeman's injury is a disputed issue of fact, which can be decided only by the jury. 76 Of course, we agree. But the dissenting JUSTICES argue that the determination of whether to apply the political question doctrine must await full discovery and the jury's verdict. 77 If the Army is found not to have caused Freeman's injury, then the case went to trial as it should have, and if the Army is found to have caused Freeman's injury, then the case should have been dismissed for want of jurisdiction-which no longer matters. Whether the political question doctrine applies or not, in the dissenting JUSTICES ' views, the case must be tried. The doctrine is reduced to an irrelevance. But the doctrine does not protect against determining the Army's liability. No one argues that the Army can be liable for Freeman's injury. Rather, the doctrine protects against judicial reexamination of military decisions. 78 At least AMK9's defenses, and perhaps even Freeman's claim, cannot be adjudicated without putting the Army's conduct and decisions on trial. The political question doctrine requires us to be mindful of the broader implications of reviewing sensitive military decisions, such as maintaining respect for the separation of powers and the federalism system outlined in the United States Constitution, minimizing interference with military prerogatives, limiting military expenditures on participating in lawsuits (such as in discovery requests), and reducing contractors' liability for the sake of future procurement efforts. 79 The inextricable involvement of military decisions in this case is not a matter of fact but a matter of law.

The dissenting JUSTICES argue incorrectly that our analysis ignores our usual process for deciding jurisdictional issues. 80 As we have explained,

[w]hen the consideration of a trial court's subject matter jurisdiction requires the examination of evidence, the trial court exercises its discretion in deciding whether the jurisdictional determination should be made at a preliminary hearing or await a fuller development of the case, mindful that this determination must be made as soon as practicable. 81

In this case, the trial court properly exercised its discretion to dismiss the case early on. "If the evidence creates a fact question regarding the jurisdictional issue , then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the fact finder." 82 The dissenting JUSTICES assume that the issue in determining whether to apply the political question doctrine in this case is whether, in fact, the Army is responsible for causing Freeman's alleged injury. But the issue is not whether the Army can be held liable; all agree that it cannot be. The jurisdictional issue is whether litigating the case inextricably involves reviewing military decisions. It certainly does. The dissenting JUSTICES ignore "the fundamental precept that a court must not proceed on the merits of a case until legitimate challenges to its jurisdiction have been decided." 83

JUSTICE DEVINE 's dissent also argues that today's decision "bars all tort suits where a military contractor-or any other defendant-is able to muster a mere allegation that a government actor whose decisions are insulated by the political-question doctrine partly caused the alleged harm." 84 This is simply not true. The cases we have cited differentiate among claims in which military decisions are or are not inextricably involved. If, for example, Kallie bit Freeman while being routinely exercised by her civilian-contractor handler, her biting Freeman would have had nothing to do with the military. The political question doctrine is not always easy to apply, but it certainly cannot be invoked to bar all claims that merely happen to have a military setting.

Whether the Army was justified in ignoring its requirements and constructing the kennel as it did is not a question a Texas court can answer. Thus, we hold that this case is nonjusticiable due to the presence of an inextricable political question. We need not consider the other grounds that AMK9 asserts for dismissal.

IV

Hill Country did not join AMK9's plea to the jurisdiction or file its own. The court of appeals held that the trial court's sua sponte dismissal of the claims against Hill Country was erroneous because Hill Country did not submit authority to establish either Hill Country's immunity or the trial court's lack of subject matter jurisdiction. "Subject matter jurisdiction is an issue that may be raised for the first time on appeal[,] it may not be waived by the parties", 85 and it may-indeed, must -be raised by an appellate court on its own. 86 The political question doctrine examines justiciability, a jurisdictional matter. Thus, it may be raised at any time or by the court sua sponte .

Freeman's claims against Hill Country must be dismissed on the same political question grounds outlined above. Pragmatically, the case will almost certainly require examination of the same apportionment-of-liability questions outlined above, though up to this point Hill Country has not had to join or separately file a motion to designate a responsible third party. Because we favor early resolution of justiciability issues, we hold that the trial court was correct to dismiss Freeman's claims against Hill Country.

* * * * *

The district court correctly concluded that Freeman's claims inextricably involve a reexamination of military decisions beyond its power to conduct. The judgment of the court of appeals is reversed and judgment is rendered that all claims be dismissed.

Justice Guzman filed a dissenting opinion.

Justice Devine filed a dissenting opinion, in which Justice Guzman joined.

Over the past two decades, the military's use of private contractors to support its overseas missions has skyrocketed. 1 "At times, the number of contract employees has exceeded the number of military personnel alongside whom they work in these warzones." 2 In a decision carrying serious ramifications for those injured by private contractors in combat zones, the Court holds that contractors can escape liability for their actions merely by pointing the finger at the military. The Court's analysis turns on a dangerous misapplication of the political question doctrine and runs counter to our plea-to-the-jurisdiction jurisprudence. I therefore join JUSTICE DEVINE 's dissenting opinion and write separately to expound on these substantive and procedural shortcomings.

I

"[T]he Judiciary has a responsibility to decide cases properly before it, even those it would gladly avoid." 3 The political question doctrine is a "narrow exception" to that charge, 4 applying only when a political question "is inextricable from the case at bar." 5 But with virtually no United States Supreme Court guidance on the topic, courts have been inconsistent in determining how entwined a political question must be for it to be "inextricable" from a case. Multiple approaches have been employed, and this case presents a prime example of the lingering uncertainty.

The Court views the Army as a responsible third party on AMK9's mere say so and dismisses the case without any evidence of that fact, concluding that simply designating the Army as a potentially responsible party means the merits of the case could never be determined without evaluating the military's battlefield decisions. I believe courts must first determine whether a fact issue exists that could obviate any need to assess the military's decisions-here, whether the Army actually caused an injury. Other Courts have taken different analytical paths, such as declining to focus the inextricability determination on the defensive theories that have been asserted-as the Court does here-because that " 'give[s] defendants too much power to define the issues.' " 6 Though the existing political-question jurisprudence is fairly well-developed, it is decidedly uneven regarding inextricability, and the Supreme Court has not weighed in to settle the matter.

One thing is clear, however; federal courts confronting the issue have applied a much more searching standard than the Court adopts today, defining inextricable to mean the political question is certain, 7 required, 8 and impossible to avoid. 9 Declining to dismiss a suit unless a political question meets the inextricability standard preserves access to the courts and fulfills the judiciary's obligation to resolve disputes. But, here, the Court gives short shrift to this crucial precept, summarily concluding a merits-based disposition is beyond judicial ken. 10 Rather than ensuring the inextricable presence of a political question, the Court holds dismissal is required if a contractor asserts-without evidence-that the military might be a causal contributor. The Court abjures its responsibility to decide justiciable cases by embracing a legal standard that terminates litigation before any determination has been made that a political question is actually in play.

Though a court must be careful not to exercise jurisdiction it lacks, it must be equally careful not to decline to exercise jurisdiction it has. 11 The Court strikes the wrong balance here. The bright-line rule the Court adopts (1) favors tortfeasors over injured parties, (2) ignores the Supreme Court's holding that only inextricable political questions render a matter nonjusticiable, and (3) is repugnant to our plea-to-the-jurisdiction precedent. Applying the appropriate legal standard and following proper procedures may ultimately lead to dismissal of LaTasha Freeman's lawsuit. But if the military had no part in causing Freeman's injury, the political question doctrine does not bar a merits-based disposition.

II

Whether a political question necessarily arises here remains to be seen. Discovery is still in the early stages, and the trial court dismissed the case without even ruling on Freeman's request for causation-related discovery. The Court concludes these circumstances portend nothing of consequence, holding a political question exists based solely on the contractor's allegations. This approach is misguided.

The existence of a political question requires a "discriminating inquiry into the precise facts and posture of the particular case" rather than "resolution by any semantic cataloguing." 12 The Court contravenes this directive by concluding that-despite the evidentiary void and without regard to the lawsuit's procedural posture-a political question is presented whenever a defendant alleges the military contributed to the harm claimed. The Court's analysis to the contrary notwithstanding, the procedural context is significant.

This case was decided on a plea to the jurisdiction, and under our well-settled procedures, naked allegations are not enough to sustain a jurisdictional plea. As we have explained time and again, when the jurisdictional inquiry and merits intertwine, as they do on the causation issue here, dismissal is improper absent proof that jurisdiction is lacking. Because such a plea invokes a summary-judgment type proceeding, any fact disputes must be resolved by the factfinder. 13 The trial court does not, as the Court implies, have discretion to ignore the evidence and "dismiss the case early on." 14 Courts have discretion regarding when , not whether , the evidence should be considered. 15

The point is illustrated in many of our sovereign-immunity cases. For example, a plea to the jurisdiction alleging sovereign immunity may not be granted on the bare assertion that the governmental unit was not grossly negligent and was thus immune from suit under the Tort Claims Act. 16 If, as here, the plea proceedings go beyond the pleadings, the trial court determines whether the evidence creates a fact issue regarding subject-matter jurisdiction, and if so, the case cannot be dismissed. 17 Indeed, a governmental entity may not be released from the case until the factfinder has resolved all facts necessary to determine the jurisdictional matter. 18 Concerning the political question doctrine, if a fact issue about the Army's responsibility exists, the political question doctrine may-depending on inextricability-preclude judicial resolution of the disputed fact. But in both sovereign-immunity and political-question cases, dismissal is neither warranted nor required unless evidence raising a fact issue is produced in the first instance.

The Court handwaves established procedure, saying fealty to our precedent would reduce the political question doctrine "to an irrelevance." 19 But this is little more than unfounded hyperbole. The Court fails to acknowledge that the political-question and sovereign-immunity doctrines involve common concerns, such as the need to avoid judicial second-guessing. 20 Our plea-to-the-jurisdiction procedures have not rendered sovereign immunity a nullity, and the political question doctrine is no more endangered by those procedures. The Court's analysis is conspicuously bereft of a compelling justification to jettison established precedent in favor of a special rule for political-question cases.

And this is not the only defect in the Court's analysis. A more disconcerting error lies in the evidentiary void the Court downplays. Because discovery was prematurely halted, the facts of this case have not been developed. The Court's disposition is contrary to the approach taken by federal appellate courts, which look to the evidence, not the allegations, to determine whether a political question is genuinely in play. In case after case, federal courts have remanded for additional discovery and other proceedings necessary to determine whether a political question is actually-rather than potentially-inextricable from the case. 21

This is a sound course of action we would be wise to follow because it fulfills our obligation to take cases that may be decided without encroaching on matters committed to the political branches and accords with our plea-to-the-jurisdiction procedures. But even though Freeman is entitled to jurisdictional discovery before her case is dismissed, the Court says Chapter 33's proportionate-responsibility provisions make evaluation of the military's role inevitable. On this point, the Court is demonstrably incorrect because a factual determination that the military was involved in the chain of causation is not equivalent to finding the military responsible. 22 Even if Chapter 33 inexorably implicates the military's liability, dismissal at this juncture is precipitous because the Army may not remain designated as a responsible third party. Though the trial court must grant a request to designate a responsible third party if the designation is supported by the pleadings and timely requested, 23 Chapter 33 requires the court to strike the designation if, after discovery, the proponent cannot back up its claim with evidence:

After adequate time for discovery, a party may move to strike the designation of a responsible third party on the ground that there is no evidence that the designated person is responsible for any portion of the claimant's alleged injury or damage. The court shall grant the motion to strike unless a defendant produces sufficient evidence to raise a genuine issue of fact regarding the designated person's responsibility for the claimant's injury or damage. 24

Chapter 33 thus allows Freeman to extricate the Army from the case and avoid a political-question dismissal if evidence of responsibility is lacking after an adequate time for discovery. Yet Freeman has been denied the benefit of the safeguards the statute provides. The district court granted AMK9's plea to the jurisdiction a mere five days after granting the motion to designate the Army as a responsible third party. Five days is rarely an adequate time for discovery. And more importantly, AMK9 has not produced any evidence that the Army caused or contributed to Freeman's injury. The Court is affording the Army's designation as a responsible third party far more weight than Chapter 33 allows.

The Court does not mention Section 33.004( l ), merely stating that the trial court has discretion to dismiss cases raising jurisdictional issues early in the proceedings. 25 But Chapter 33 does not allow such discretion; it requires the trial court to strike a responsible-third-party designation if the defendant cannot-with evidence-support the designation. This scenario would, in this case, eliminate the existence of any political question.

Under Chapter 33, a responsible-third-party designation is permitted only on the terms and conditions provided in that statute, and through the process provided in Section 33.004( l ), the alleged political question may be extricated from this case. 26 As the adage goes, he who lives by the sword today, may die by the sword tomorrow. Thus, rather than summarily dismissing on the basis of a political question, the cause should be remanded to the trial court to allow the parties to more fully engage the discovery process as required by Chapter 33, our plea-to-the-jurisdiction precedent, and the inextricability requirement.

III

The Supreme Court's most recent political-question guidance serves as a reminder that courts must not shirk their "responsibility to decide cases properly before [them]." 27 In Zivotofsky v. Clinton , the Court refused to find a political question precluded the third branch from passing on the constitutionality of certain parts of the Foreign Relations Act. 28 In so holding, the Court emphasized the judicial branch's duty to decide cases, observing that judges "appropriately exercise[ ]" the authority to determine the constitutionality of statutes on a regular basis. 29 "This is what courts do." 30

As a concurring opinion in Zivotofsky put it, courts may not "decline to resolve a controversy within their traditional competence and proper jurisdiction simply because the question is difficult, the consequences weighty, or the potential real for conflict with the policy preferences of the political branches." 31 After all, deciding such cases "is the role assigned to courts by the Constitution." 32

Here, the Court abdicates that role in favor of a bright-line rule that unnecessarily and improperly tilts to the advantage of tortfeasors, allowing wrongdoers to evade responsibility by accusing others. Dismissal on "the mere chance that a political question may eventually present itself" is inappropriate 33 and works an injustice on those who risk their lives working alongside military contractors. Because we do not know now, with any certainty, that the potential political question cannot be extricated from this case, dismissal is premature and improper. I respectfully dissent.

Standards of review dictate appellate review. The standard here is extremely deferential to LaTasha Freeman, the nonmovant: we view the facts and pleadings in the light most favorable to her and must deny American K-9 Detection Services, LLC's (AMK9's) plea if a fact question about jurisdiction exists that also implicates the case's merits. See Tex. Dep't of Parks and Wildlife v. Miranda , 133 S.W.3d 217 , 226-28 (Tex. 2004). This includes when jurisdiction depends on a fact question about proximate cause. Ryder Integrated Logistics, Inc. v. Fayette Cty. , 453 S.W.3d 922 , 929 (Tex. 2015) (denying plea to the jurisdiction when the allegations "generate[d] a fact issue" about "proximate cause"). AMK9's plea is based on its allegation that the Army at least partly caused Freeman's injuries; but Freeman alleges that AMK9, not the Army, proximately caused her injuries. This is a classic fact-question.

So long as this fact question remains, we cannot grant AMK9's plea. Yet the Court flips the standard of review on its head by viewing the evidence in the light most favorable to AMK9, the movant. The Court does this through heavy reliance on the pronouncements-some of which are dicta-of several federal courts. I am unconvinced by their reasoning. The U.S. Supreme Court has not endorsed their views on the political-question doctrine in proportionate-responsibility systems, and we are not otherwise bound by their holdings. I would instead hold that when a political-question doctrine claim depends on a causal finding, we cannot dismiss the suit while causation is disputed. Because the Court's dismissal contravenes well-established plea-to-the-jurisdiction jurisprudence, and because no other ground AMK9 or Hill Country Dog Center, LLC asserts can sustain the plea, I dissent.

I. Jurisdiction over Freeman's claims against American K-9 Detection Services, LLC

A. Political-Question Doctrine

AMK9 argues in its plea that we lack jurisdiction because the Army at least partly caused Freeman's injuries, thereby implicating the political-question doctrine. A plea to the jurisdiction is a dilatory plea that defeats a cause of action whether the claims have merit or not. Bland Indep. Sch. Dist. v. Blue , 34 S.W.3d 547 , 554 (Tex. 2000). A defendant can use a plea to challenge jurisdiction based on the sufficiency of the plaintiff's pleadings or on the existence of jurisdictional facts. Miranda , 133 S.W.3d at 226 . AMK9 challenges the jurisdictional facts. "[W]hether undisputed evidence of jurisdictional facts establishes a trial court's jurisdiction is ... a question of law" that we review de novo. Id. ; see also Tex. Nat'l Res. Conservation Comm'n v. IT-Davy , 74 S.W.3d 849 , 855 (Tex. 2002). When the evidence is undisputed or does not raise a fact question about jurisdiction, the trial court rules on the plea as a matter of law. Miranda , 133 S.W.3d at 228 . But when the evidence (1) creates a fact question about jurisdiction and (2) implicates the case's merits, "the trial court cannot grant the plea" and the fact-finder must resolve the fact question. Id. at 227-28 . In such situations, we determine whether a fact question exists by taking all evidence favorable to the nonmovant as true, indulging every reasonable inference and resolving any doubts in her favor. Id. at 228 .

This review essentially mirrors our summary-judgment standard: after the defendant presents evidence that the trial court lacks jurisdiction-and when such evidence also implicates the case's merits-the plaintiff must show only that a jurisdictional fact is disputed to survive the plea. Id. This standard of review saves plaintiffs from having to "put on their case simply to establish jurisdiction" in response to a dilatory plea, which "should be decided without delving into the [case's] merits." Bland , 34 S.W.3d at 554 . Otherwise, a plaintiff like Freeman "would be required to try [her] entire case" just to show jurisdiction. Id.

Here, Freeman alleges that AMK9 was negligent for leaving Kallie unattended, not properly training her or her handler, not keeping her under restraint, and not securing the kennel. Freeman does not allege that the Army or its kennel design caused her injuries. AMK9 alleges these things. Thus, Freeman's allegations dispute that the Army proximately caused her injuries. This proximate-cause issue is what potentially raises a political question because if the Army caused Freeman's injuries, we might have to evaluate the Army's military decisions as a responsible third-party. The political-question doctrine, however, bars this suit if and only if a political question-here, the Army's military decisions-is "inextricable from the case." Baker v. Carr , 369 U.S. 186 , 217, 82 S.Ct. 691 , 7 L.Ed.2d 663 (1962).

The elements of proximate cause are cause-in-fact and foreseeability. W. Invs., Inc. v. Urena , 162 S.W.3d 547 , 551 (Tex. 2005). "Because proximate cause is ultimately a question for a fact-finder," we must sustain AMK9's plea if Freeman's petition " 'creates a fact question' regarding the causal relationship between [the Army's conduct] and the alleged injuries." Ryder , 453 S.W.3d at 929 (quoting Miranda , 133 S.W.3d at 228 ). AMK9 alleges that it had to use the Army's kennels, and that the Army's failure to place a top on these kennels at least partly caused Kallie's escape. Maybe so. But a juror might reasonably infer that, had AMK9 closed every kennel door, as well as the kennel building's outer door, the lack of a top would have been causally irrelevant.

Even if the Army was aware that this design might allow a dog to scale the internal dividers between kennel pens, that a successful escape was foreseeable to the Army is far from clear. As Freeman points out, the Army required AMK9 to close all of the kennel's doors and the kennel was inside a building. Had AMK9 closed either the kennel's or building's doors-as the Army required it to do-Kallie's escape attempt would have been futile. That arguably makes the foreseeability of her escape doubtful. And we resolve doubts in Freeman's favor. See Miranda , 133 S.W.3d at 228 .

Furthermore, a juror could reasonably infer that an escape was as foreseeable to AMK9 as to the Army. In fact, because AMK9, not the Army, trained and handled Kallie, a juror could reasonably infer that AMK9 knew better than anyone whether Kallie might escape as she did. By indulging every reasonable inference and resolving any doubts in Freeman's favor, a juror could find that Kallie's escape was not foreseeable to the Army and that AMK9's actions were the escape's cause-in-fact.

But no matter who proximately caused Kallie's escape, a juror could reasonably conclude that AMK9's allegedly negligent training was the attack's sole proximate cause. Freeman alleges that AMK9 trained Kallie such that she-contrary to the Army's contractual specifications-attacked without cause and without being ordered. Viewing these facts favorably to Freeman, a juror could reasonably conclude that a dog trained to the Army's specifications presents no attack threat to people like her. Thus, even if the Army partly caused Kallie's escape, a juror could reasonably conclude that an attack was not foreseeable to the Army and that AMK9's training was the attack's cause-in-fact. We must, therefore, conclude that a fact question about proximate cause exists.

Indulging every reasonable inference and resolving any doubts in Freeman's favor and taking all evidence favorable to her as true, a juror could reasonably conclude that AMK9's actions-and only AMK9's actions-caused the alleged attack. See id. at 228 . AMK9, of course, disputes this. It alleges that the Army at least partly caused Kallie's escape and, therefore, this suit necessarily requires evaluating sensitive military decisions. We, however, cannot decide that issue while an underlying causal fact-question exists because that question affects whether the military's decisions are "inextricable from the case." Baker , 369 U.S. at 217 , 82 S.Ct. 691 . Thus, answering the political-question doctrine issue now, as the Court does, is premature.

The Court actually agrees that causation is a disputed fact-question here that can be decided only by a jury. Ante at 259 (citing Miranda , 133 S.W.3d at 227-28 ). Nevertheless, the Court is unmoved by that bar to its judgment. Despite that we cannot determine whether the doctrine is implicated without first resolving that fact question, the Court retorts that my analysis here, which simply applies our plea-to-the-jurisdiction standard, makes the doctrine "an irrelevance." Ante at 259. That is not true. If AMK9 is correct, it might get the suit dismissed under the doctrine, which is very relevant. We would not reduce the doctrine to an irrelevance by making AMK9 actually prove the facts of its defense. That makes the doctrine no more irrelevant than in any other suit where a potentially dispositive defense depends on a fact question that can be determined only through trial.

Furthermore, the Court's holding has a worrisome consequence to our jurisprudence. The holding essentially bars all tort suits where a military contractor-or any other defendant-is able to muster a mere allegation that a government actor whose decisions are insulated by the political-question doctrine partly caused the alleged harm. Even if the Court's view of that doctrine is otherwise right, its application here throws out cases where unproven, disputed factual allegations affect whether the doctrine is, in fact, implicated. That, in my view, throws the baby out with the bathwater.

For example, if a soldier sued a contractor for negligently making a tank hatch contrary to Army requirements such that it did not open properly, trapping him inside and injuring him, the contractor could obtain dismissal by merely alleging that the Army at least partly caused the hatch's failure. The Army, the contractor might argue, decided to park the tank in an area without a cover, and this exposure to the elements caused the hatch to fail. Thus, the Army's wartime military decision partly caused the injury, implicating the political-question doctrine. If that truly did cause the hatch to fail, the contractor might be entitled to dismissal. But if the soldier disputes that the Army's actions caused the failure, instead alleging that the contractor's actions are the sole proximate cause, this causal fact-question should allow him to survive a plea to the jurisdiction. Otherwise, we deny all relief even when the soldier's allegations prove true.

The Court attempts to cabin this slippery slope, but in doing so shows why a jury needs to resolve the fact question here. The Court states that had "Kallie bit Freeman while being routinely exercised by her civilian-contractor handler," the attack "would have had nothing to do with the military." Ante at 260. But that does not solve the problem because in that scenario AMK9 has not alleged that the Army partly caused anything. Based on the Court's opinion here, AMK9 would be foolish not to make such an easy-to-manufacture allegation. For example, AMK9 could argue that the Army partly caused this attack by not providing enclosed yards for exercising these working dogs, thereby implicating the Army's equipment decisions. That causal allegation might be without merit, but that's the point-so might AMK9's actual allegation. The problem is that AMK9 is getting this case dismissed as a matter of law based on a disputed fact-question. The Court's scenario does not solve this problem because the scenario does not address this problem. Instead, the Court's scenario avoids the issue: how do we handle cases where a defendant's disputed causal allegation might implicate a military decision given that the allegation might be wrong? If AMK9 is wrong here, this case, too, has "nothing to do with the military." Id. That is why a fact-finder must resolve this fact question.

Because AMK9's jurisdictional plea and Freeman's case on the merits both depend on the same fact question-whether the Army or AMK9 proximately caused Freeman's injury-we should deny AMK9's plea, leaving this fact question for the fact-finder. See Miranda , 133 S.W.3d at 227-28 .

The foregoing analysis should be enough to deny AMK9's plea. The Court, however, effectively side-steps this in holding that AMK9's proximate-cause defense would require the jury to impermissibly evaluate the Army's decisions about the kennel's design and construction. Ante at 252. That completely ignores the possibility that the Army might not be a cause at all. That move, however, is consistent with several federal cases. The Court endorses those cases, but their reasoning on that point cannot withstand scrutiny.

In Harris v. Kellogg Brown & Root Services, Inc. , the Third Circuit held that a sole-proximate-cause defense would not implicate the political-question doctrine because that dispute is "simply about who did what." 724 F.3d 458 , 473 (3d Cir. 2013). But the court then concluded that, in a proportionate-responsibility system, determining whether the military was a proximate cause (rather than the sole proximate cause) would require a court to impermissibly second-guess military decisions. Id. at 474 . In re KBR, Inc., Burn Pit Litigation , relying on Harris , also held that a proximate-cause defense does not make a suit nonjusticiable unless the military at least partly caused the plaintiffs' injuries and the suit was in a proportionate-responsibility system. 744 F.3d 326 , 340-41 (4th Cir. 2014). The Harris court's explanation for this distinction was that, when determining partial cause, "there is simply no way to determine damages without evaluating military decisions" because the fact-finder "cannot decide the respective degrees of fault" between the military and the contractor "without evaluating the decisions made by each...." Harris , 724 F.3d at 474 . But that does not explain the distinction.

Rather, this explanation skips a step. It incorrectly assumes that finding that the military partly caused the injury means finding that the military negligently caused it. The latter might be a political question, but the former is not. Determining "who did what" does not require second-guessing any decisions, military or otherwise. See id. at 473 . Causal questions are objective, not normative. Objective questions do not inexplicably become normative just because Texas uses a proportionate-responsibility system. Holding otherwise conflates the distinction between causation and negligence.

Negligence assessments require multiple findings. In Texas, a court must find (1) the existence of a legal duty, (2) a breach of that duty, and (3) damages proximately caused by that breach. IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason , 143 S.W.3d 794 , 798 (Tex. 2004). No party is ever negligent merely by causing an event; something more is always required. This is true as a matter of basic tort law. See RESTATEMENT (SECOND) OF TORTS § 281 (1965) (Statement of the Elements of a Cause of Action for Negligence). A fact-finder also must determine that the party should have acted otherwise. This determination-whether the party should have acted as it did-is the potential political question. "[W]ho did what" is not. Harris , 724 F.3d at 473 .

Nothing about our proportionate-responsibility system changes that a causal finding does not second-guess anything. And neither the Court nor its cited authorities explain how it could. Thus, resolving the factual dispute here-whether the Army or AMK9 proximately caused Freeman's injuries-does not raise a political question even if this suit eventually raises one because AMK9's allegations prove true. AMK9's allegations have to actually be true first. This is why I cannot condone the Court's reasoning or its reliance on any case that holds that our proportionate-responsibility system somehow transforms a causal finding into a political question. The causal finding might raise a political question later in the suit, but the finding is not itself a political question.

We cannot avoid a fact question now just because a dispositive legal one might arise later. At no point in a factual who-did-what determination will the court or jury re-examine a military decision. See id. Why the Army made that decision and whether the decision was justified are irrelevant to that inquiry. The decision was made. All that matters is whether it caused Freeman's injuries, as AMK9 claims, or not, as Freeman claims.

This untenable distinction between causation defenses is rendered even more inexplicable when we consider that, had AMK9 argued only that the Army was the sole proximate cause, the Court would not dismiss this suit-that defense does not raise a nonjusticiable issue. Ante at 256 (citing Harris , 724 F.3d at 473 ;

In re KBR , 744 F.3d at 340-41 ). Apparently, a defendant is better off admitting that he partly caused an injury than that he did not cause it at all, so long as he also asserts that the military partly caused the injury- i.e. , admitting partial fault will get your case dismissed; denying fault completely will not. That cannot be right, and is probably why the U.S. Supreme Court has not endorsed this view.

The Court dismisses this entire suit on the mere allegation that the Army might have at least partly caused Freeman's injuries. Because that causal fact-question is disputed, and because nothing about our proportionate-responsibility system mutates such a causal finding into a political question, we should not yet hold that a political question is "inextricable from the case." Baker , 369 U.S. at 217 , 82 S.Ct. 691 . Until a political question is so intertwined, I cannot join the Court's judgment.

B. Preemption under the Federal Tort Claims Act

AMK9 argues that the Federal Tort Claims Act preempts Freeman's Texas tort-law claims because the Act's combatant-activities exception applies here. See 28 U.S.C. § 2680 (j) (2012). The Tort Claims Act is a limited waiver of sovereign immunity, 28 U.S.C. § 2674 , and under the combatant-activities exception, the United States retains its immunity for "[a]ny claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war." Id. But "[u]nlike complete preemption, which is a jurisdictional issue," preemption based on the combatant-activities exception is "only an affirmative defense." McManaway v. KBR, Inc. , 852 F.3d 444 , 447 n.2 (5th Cir. 2017) ; see also Spear Mktg., Inc. v. BancorpSouth Bank , 844 F.3d 464 , 467 n.3 (5th Cir. 2016), Cmty. State Bank v. Strong , 651 F.3d 1241 , 1260 n.16 (11th Cir. 2011). "[N]o court has held[ ] that" preemption under this exception "constitutes complete preemption," and "[a]bsent complete preemption, whether a plaintiff's claims are preempted relates to the merits." Harris , 724 F.3d at 463 . I see no reason to disagree with the federal circuits on this matter.

The combatant-activities exception does not preempt all state-law tort claims; it preempts only those claims "arising out of" combatant activities. 28 U.S.C. § 2680 (j). Such claims are only a small subset of potential tort claims, not the entire substantive field of tort claims or even the entire field of tort claims against contractors overseas. See Spear Mktg. , 844 F.3d at 467 n.3. Because the combatant-activities exception does not convert all such state-law tort claims into federal claims- i.e. , despite the exception, state-law tort claims continue to exist-the exception is merely "ordinary" preemption, not "complete" preemption. See GlobeRanger Corp. v. Software AG , 691 F.3d 702 , 705 (5th Cir. 2012) (quoting Caterpillar Inc. v. Williams , 482 U.S. 386 , 393, 107 S.Ct. 2425 , 96 L.Ed.2d 318 (1987) ); 14B CHARLES ALAN WRIGHT ET AL. , FEDERAL PRACTICE & PROCEDURE § 3722.2 (4th ed. 2016). AMK9's preemption argument is, therefore, only a defense. Even if the exception applies to Freeman's claims, the exception goes to the merits and, hence, cannot sustain a jurisdictional plea.

C. Westfall Immunity

AMK9 next argues that it is entitled to Westfall immunity, a form of absolute official immunity. This argument was not one of AMK9's original bases for its jurisdictional plea. AMK9 originally argued derivative sovereign immunity, but on appeal has abandoned that ground in favor of Westfall immunity. Because Westfall immunity is immunity from suit, defendants can raise it for the first time on appeal. San Antonio Water Sys. v. Nicholas , 461 S.W.3d 131 , 136 (Tex. 2015).

The original test for determining whether absolute official immunity applies comes from Westfall v. Erwin , 484 U.S. 292 , 108 S.Ct. 580 , 98 L.Ed.2d 619 (1988). That decision has been superseded by statute, see 28 U.S.C. § 2679 (d) (2012), but the Westfall test is still used to determine when such immunity applies to nongovernmental entities for state-law tort claims. Houston Cmty. Hosp. v. Blue Cross and Blue Shield of Texas, Inc. , 481 F.3d 265 , 269 (5th Cir. 2007) ; accord Murray v. Northrop Grumman Info. Tech., Inc. , 444 F.3d 169 , 174 (2d Cir. 2006) ; see also Beebe v. Washington Metro. Area Transit Auth. , 129 F.3d 1283 , 1289 (D.C. Cir. 1997). Under this test, a nongovernmental entity is entitled to immunity when it makes discretionary decisions within the scope of its duties to perform an official government function. Houston Cmty. Hosp. , 481 F.3d at 269 .

Here, AMK9 handles bomb-sniffing working dogs at a forward-operating base during war. These dogs work with active combat-units in the field, supplementing the military's own working dogs. Such overseas combat-related work that is integrated with the military is quintessentially governmental in nature. But Freeman is not alleging that AMK9 erred in any of its discretionary acts while performing these government functions. Freeman is claiming that AMK9 failed to do what the Army required- i.e. , to close all of the kennel's doors, to not leave any dogs unattended, and to train the dogs so that they would attack only when ordered or given cause. AMK9 did not have discretion to violate its contractual duties or the Army's policies. Indeed, official immunity is not meant "to protect an erring official, but to insulate the decision-making process" from litigation. Westfall , 484 U.S. at 295 , 108 S.Ct. 580 . The Army already prescribed AMK9's actions-the relevant official decisions were already made. Hence, Freeman is not challenging AMK9's discretionary decisions; she is challenging its failure to do what the Army already decided that AMK9 must do. Whether these alleged failures proximately caused Freeman's injuries is a separate question that goes to the merits. But for purposes of evaluating AMK9's immunity argument, AMK9 has failed to demonstrate that it is immune from suit by, as Freeman alleges, not doing what the Army required.

AMK9 points out, however, that it had discretion in how to train its dogs. True, but Freeman is not challenging AMK9's discretionary decisions in picking particular training methods. She claims that AMK9 failed to deliver working dogs that met the Army's performance-based contract requirements. Performance-based contracts "describe the work in terms of the required results rather than ... 'how' the work is to be accomplished...." Saleh v. Titan Corp. , 580 F.3d 1 , 10 (D.C. Cir. 2009) (quoting 48 C.F.R. § 37.602 (b)(1) ). One of those requirements was that these dogs would attack only when commanded or when given cause. AMK9 therefore had discretion in how to train its dogs to meet these requirements, not whether its dogs met them. For that reason, this argument fails. Thus, Westfall immunity cannot sustain AMK9's plea to the jurisdiction.

D. Defense Production Act

Finally, AMK9 argues that it is immune from suit because its contract with the Army is a "rated order" contract under the Defense Production Act. The Act authorizes the President to "require that performance under contracts or orders ... which he deems necessary or appropriate to promote the national defense shall take priority over performance under any other contract or order...." 50 U.S.C. § 4511 (a) (Supp. IV 2016). The Act later states that "[n]o person shall be held liable for damages or penalties for any act or failure to act resulting directly or indirectly from compliance with a rule, regulation, or order issued pursuant to this [Act]...." Id. § 4557. Hence, the Act provides immunity to contractors who give their "rated order" contracts priority over other contracts or orders when their actions (or inactions) in doing so might otherwise subject them to liability.

Assuming that the Act applies here, it cannot sustain AMK9's jurisdictional plea. Even though the Act "plainly provides immunity," it does so "[b]y expressly providing a defense to liability." Hercules Inc. v. United States , 516 U.S. 417 , 429, 116 S.Ct. 981 , 134 L.Ed.2d 47 (1996) (emphasis added). The Act, therefore, provides immunity from liability, not suit. See Brown & Gay Eng'g, Inc. v. Olivares , 461 S.W.3d 117 , 121 (Tex. 2015) ("Immunity from liability is an affirmative defense ... while immunity from suit bars suit against the entity altogether and may be raised in a plea to the jurisdiction."). Thus, whether the Act applies to tort suits like this one or not, AMK9's Defense Production Act-based defense cannot sustain its jurisdictional plea.

* * * * *

Because none of AMK9's arguments establish a lack of subject-matter jurisdiction, the trial court erred in granting AMK9's plea to the jurisdiction.

II. Jurisdiction over Freeman's claims against Hill Country Dog Center, LLC

Hill Country Dog Center did not file a plea to the jurisdiction. It did file a Rule 91(a) motion, but the trial court did not rule on it. See TEX. R. CIV. P. 91(a). On appeal, Hill Country argues that, under Texas law, liability for a dog attack runs only to the owner at the time of the incident, not to the former owner. It also argues that no causes of action for negligently training a dog or for strict liability for a non-owner exist. Hence, Hill Country argues that the trial court was correct to find, sua sponte , that it lacked jurisdiction over Freeman's claims.

Whether these arguments are correct statements of Texas law or not, Hill Country provides no authority that they deprive the trial court of subject-matter jurisdiction. Its arguments, even if meritorious, offer immunity only from liability, not suit. Thus, the trial court erred in dismissing Freeman's claims against Hill Country based on a lack of subject-matter jurisdiction.

III. Conclusion

Freeman alleges that AMK9's supervision and training of its dog was the cause-in-fact of her injuries. AMK9 alleges that the Army was partly to blame. Although the Court does not know whether either allegation is true, it nonetheless dismisses Freeman's claim against AMK9 because the Army might have contributed to causing her injuries. Even assuming that the Court otherwise correctly applies the political-question doctrine to such partial-cause scenarios, I simply cannot understand how the mere allegation that the Army might have partly caused Freeman's injuries is sufficient to defeat her claim-a claim that does not even raise that issue. The Court ignores these deficiencies to sustain AMK9's jurisdictional plea notwithstanding the existence of unresolved factual questions necessary to the doctrine's application. Thus, I respectfully dissent.

59

See Taylor v. Kellogg Brown & Root Servs., Inc. , 658 F.3d 402 , 411-412 (4th Cir. 2011).

60

Id. at 404 .

61

Id.

62

Id. at 411-412 .

63

Id. at 412 .

64

Lane v. Halliburton , 529 F.3d 548 , 560 (5th Cir. 2008) (quoting McMahon v. Presidential Airways, Inc. , 502 F.3d 1331 , 1360 (11th Cir. 2007) ).

65

Gilligan v. Morgan , 413 U.S. 1 , 10, 93 S.Ct. 2440 , 37 L.Ed.2d 407 (1973).

66

Tiffany v. United States , 931 F.2d 271 , 277 (4th Cir. 1991).

67

Gilligan , 413 U.S. at 10 , 93 S.Ct. 2440 .

68

Harris v. Kellogg Brown & Root Servs., Inc. , 724 F.3d 458 , 478 (3d Cir. 2013).

69

Id. at 474 .

70

Id.

71

Baker v. Carr , 369 U.S. 186 , 211, 82 S.Ct. 691 , 7 L.Ed.2d 663 (1962).

72

Tex. Civ. Prac. & Rem. Code § 33.003(a).

73

Lane v. Halliburton , 529 F.3d 548 , 561 (5th Cir. 2008).

74

See Torrington Co. v. Stutzman , 46 S.W.3d 829 , 837 (Tex. 2000) (recognizing "a duty to use reasonable care ... when a person undertakes to provide services to another, either gratuitously or for compensation").

75

724 F.3d at 474 .

76

See post at 268 (Devine, J., dissenting).

77

Post at 261 (Guzman, J., dissenting); post at 266-67 (Devine, J., dissenting); see Tex. Dep't of Parks & Wildlife v. Miranda , 133 S.W.3d 217 , 227-228 (Tex. 2004) ("If the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the fact finder.").

78

See U.S. Dep't of Commerce v. Montana , 503 U.S. 442 , 457-458, 112 S.Ct. 1415 , 118 L.Ed.2d 87 (1992) ("When a court concludes that an issue presents a nonjusticiable political question, it declines to address the merits of that issue.").

79

See McManaway v. KBR, Inc. , 554 Fed.Appx. 347 , 350 (5th Cir. 2014) (Jones, J. dissenting from the denial of rehearing en banc).

80

See post at 261 (Guzman, J., dissenting); post at 268-69 (Devine, J., dissenting).

81

Miranda , 133 S.W.3d at 227 .

82

Id. at 227-228 (emphasis added).

83

Id. at 228 .

84

Post at 268 (Devine, J., dissenting).

85

Tex. Ass'n of Bus. v. Tex. Air Control Bd. , 852 S.W.2d 440 , 445 (Tex. 1993).

86

See id. at 445-446 .

1

In re KBR, Inc. (Burn Pit Litig.) , 744 F.3d 326 , 331 (4th Cir. 2014).

2

Id.

3

Zivotofsky v. Clinton , 566 U.S. 189 , 194, 132 S.Ct. 1421 , 182 L.Ed.2d 423 (2012) (internal quotation marks omitted).

4

Id. at 195 , 132 S.Ct. 1421 .

5

Baker v. Carr , 369 U.S. 186 , 217, 82 S.Ct. 691 , 7 L.Ed.2d 663 (1962).

6

Ghane v. Mid-S. Inst. of Self Defense Shooting, Inc. , 137 So.3d 212 , 221 (Miss. 2014) (quoting McMahon v. Gen. Dynamics Corp. , 933 F.Supp.2d 682 , 695 (D.N.J. 2013) ).

7

See Lane v. Halliburton , 529 F.3d 548 , 565 (5th Cir. 2008) ("[A] court must satisfy itself that [a] political question will certainly and inextricably present itself.").

8

See Cooper v. Tokyo Elec. Power Co. , 860 F.3d 1193 , 1215 (9th Cir. 2017) (framing the issue as whether the claims or causation defense "would actually require the court to review the wisdom of the Navy's decisions"); In re KBR, Inc. (Burn Pit Litig.) , 744 F.3d 326 , 340 (4th Cir. 2014) (discussing whether causation defense "require[s] evaluation of the military's decision making"); McMahon v. Presidential Airways, Inc. , 502 F.3d 1331 , 1358 (11th Cir. 2007) ("A case may be dismissed on political question grounds if-and only if-the case will require the court to decide a question possessing one of these six [ Baker ] characteristics.").

9

See Carmichael v. Kellogg, Brown & Root Servs., Inc. , 572 F.3d 1271 , 1282-83 (11th Cir. 2009) (analyzing whether "it would be impossible to make any determination" regarding negligence without scrutinizing military decisions).

10

Ante at 260 ("[W]e hold that this case is nonjusticiable due to the presence of an inextricable political question.").

11

As Chief Justice Marshall explained in Cohens v. Virginia :

It is most true that this court will not take jurisdiction if it should not; but it is equally true, that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution.

19 U.S. (6 Wheat.) 264, 404, 5 L.Ed. 257 (1821).

12

Baker v. Carr , 369 U.S. 186 , 217, 82 S.Ct. 691 , 7 L.Ed.2d 663 (1962).

13

See Alamo Heights Indep. Sch. Dist. v. Clark , 544 S.W.3d 755 , 770-71 (Tex. 2018) ; Tex. Dep't of Parks & Wildlife v. Miranda , 133 S.W.3d 217 , 227 (Tex. 2004).

14

Ante at 259-60.

15

See Miranda , 133 S.W.3d at 227 .

16

Cf. id. at 224-25, 231-32 (evaluating affirmative evidence that the governmental entity was not grossly negligent).

17

See Alamo , 544 S.W.3d at 770 ; Miranda , 133 S.W.3d at 232 .

18

See San Antonio Water Sys. v. Nicholas , 461 S.W.3d 131 , 136 (Tex. 2015).

19

Ante at 259.

20

Compare Baker v. Carr , 369 U.S. 186 , 217, 82 S.Ct. 691 , 7 L.Ed.2d 663 (1962) (including as political-question factors "the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government" and any "need for unquestioning adherence to a political decision already made"), with Kassen v. Hatley , 887 S.W.2d 4 , 8 (Tex. 1994) ("The public would suffer if government officers, who must exercise judgment and discretion in their jobs, were subject to civil lawsuits that second-guessed their decisions.").

21

See Cooper v. Tokyo Elec. Power Co. , 860 F.3d 1193 , 1217 (9th Cir. 2017) ("As the facts develop, it may become apparent that resolving [the] superseding causation defense would require the district court to evaluate the wisdom of the Navy's decisions.... But at this point, that is not clear."); In re KBR, Inc. (Burn Pit Litig.) , 744 F.3d 326 , 339 (4th Cir. 2014) ("[A]lthough the evidence shows that the military exercised some level of oversight over [KBR], we simply need more evidence to determine whether KBR or the military chose how to carry out these tasks. We therefore cannot determine whether the military control factor renders this cause nonjusticiable at this time."); Lane v. Halliburton , 529 F.3d 548 , 567 (5th Cir. 2008) ("The Plaintiffs' negligence allegations move precariously close to implicating the political question doctrine, and further factual development very well may demonstrate that the claims are barred. However, ... we cannot say at this point that [the] negligence claims necessarily implicate the political question doctrine."); McMahon v. Presidential Airways, Inc. , 502 F.3d 1331 , 1362 (11th Cir. 2007) ("At this early stage of the litigation, we therefore cannot say it is evident that McMahon's suit will call into question decisions made by the military, must less the kind of military decisions that might be insulated by the political question doctrine."); see also Harris v. Kellogg, Brown & Root Servs., Inc. , 724 F.3d 458 , 469 (3d Cir. 2013) ("If there is sufficient evidence to support the defense, then the District Court must determine whether the defense actually presents a nonjusticiable issue.").

22

See post at 269-70 (Devine, J., dissenting).

23

Tex. Civ. Prac. & Rem. Code § 33.004(a) -(g) ; see In re Coppola , 535 S.W.3d 506 , 507-08 (Tex. 2017) (orig. proceeding).

24

Tex. Civ. Prac. & Rem. Code § 33.004( l ) (emphasis added).

25

Ante at 259-60.

26

See Lane , 529 F.3d at 566-67 (refusing to dismiss the lawsuit under Federal Rule of Civil Procedure 12(b)(1) because "we cannot say that all plausible sets of facts that would permit the recovery from KBR would also raise a political question").

27

Zivotofsky v. Clinton , 566 U.S. 189 , 194, 132 S.Ct. 1421 , 182 L.Ed.2d 423 (2012).

28

See id. at 194-96 , 132 S.Ct. 1421 .

29

Id. at 197 , 132 S.Ct. 1421 .

30

Id. at 201 , 132 S.Ct. 1421 .

31

Id. at 205 , 132 S.Ct. 1421 (Sotomayor, J., concurring).

32

Id. ; see also Tex. Const. art. I, § 13 ("All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.").

33

McMahon v. Presidential Airways, Inc. , 502 F.3d 1331 , 1365 (11th Cir. 2007) ; see also Lane v. Halliburton , 529 F.3d 548 , 565 (5th Cir. 2008) (before dismissing on political-question grounds, "a court must satisfy itself that [a] political question will certainly and inextricably present itself").